Tuesday, August 12, 2014
It is no secret that the long-term care insurance industry has struggled to offer products that are both attractive and affordable for consumers and financially worthwhile for the insurance companies. MetLife and Prudential no longer offer new policies, for example.
Genworth, the largest provider of long-term care insurance, announced on July 29, 2014 that its second quarter showed significant changes and that it is conducting a comprehensive review of its long term care insurance claim reserves. Apparently the company's investors have asked for additional information, following the last in-depth review of the claims reserve, which was conducted in 2012. Genworth's news release explained:
"The primary areas of focus in the current review are: (i) an analysis of potential causes of the meaningful increases in adverse claims experience in the second quarter of 2014 and (ii) an assessment of the assumptions and methodology underlying the associated reserves, including morbidity, mortality, interest rates and claim terminations. The company intends to complete this review before the release of financial results for the third quarter of 2014. The company continues to believe that the existing assumptions and methodology provide the most reliable best estimate. However, given the review underway that will consider both long-term and recent experience, the company will likely change some of its assumptions, which could increase our long term care insurance claim reserves, and any increase may or may not be material."
As reported by Reuters, ratings of Genworth by Fitch already assume some level of LTC earnings and reserve volatility, but depending on the size of any charges taken by Genworth in the third quarter, "Fitch may review the ratings of GNW [Genworth] and the review could result in a revision in the Outlook to Negative or a rating downgrade."
Monday, August 11, 2014
NCLC's Consumer Rights Litigation Conference on November 6-9, 2014 in Tampa, FL has scholarships available for consumer rights advocates.
REGISTER ONLINE TODAY by clicking on this link here: Register Online
Source: National Consumer Law Center
A New York teenager whose grandfather suffers from Alzheimer's disease won a $50,000 science prize for developing wearable sensors that send mobile alerts when a dementia patient begins to wander away from bed, officials said on Wednesday. Kenneth Shinozuka, 15, who took home the Scientific American Science in Action Award, said his invention was inspired by his grandfather's symptoms, which frequently caused him to wander from bed in the middle of the night and hurt himself. "I will never forget how deeply moved my entire family was when they first witnessed my sensor detecting Grandfather's wandering," Shinozuka said in a statement. "At that moment, I was struck by the power of technology to change lives." His invention uses coin-sized wireless sensors that are worn on the feet of a potential wanderer. The sensors detect pressure caused when the person stands up, triggering an audible alert on a caregiver's smartphone using an app.
The award honors a project that aims to make a practical difference by addressing an environmental, health or resources challenge, said Scientific American Editor in Chief Mariette DiChristina.
Read more at Reuters.
The Washington Post recently completed a disturbing three-part series on hospice. To analyze the quality of services rendered to terminal patients, the reporters reviewed "Medicare billing records for more than 2,500 outfits, obtained an internal Medicare tally of nursing care in patients near death and reviewed complaint records at hundreds of hospices." The Post tracks data pointing to staff shortages, lack of coordination in care, failure to provide sustained assistance during critical periods, and the potential for Medicare to incentivize such gaps through perverse funding priorities.
Sunday, August 10, 2014
By 2050, a quarter of China’s population is expected to be age 65 or older. Although the government has recently loosened its restrictive population policy to allow most couples to have two children, so far it doesn’t look likely that any forthcoming baby boom will save China from its rapidly aging population. China’s current elderly, especially those living in rural areas, frequently endure chronic medical conditions without treatment, according to a new study in the journal International Health. Dai Baozhen of Jiangsu University’s Department of Health Policy & Management analyzed the results of China’s semi-regular “health and nutrition survey” for 2009, looking in particular at the responses from rural households in nine provinces.
Among his findings: China’s elderly are likely to be less educated than younger cohorts and often poorer. Nearly 70 percent of the rural elderly in the survey had an annual income of less than 5,000 renminbi ($810). Many also said their children had left home to work in cities, and while they might send money back, they couldn’t provide steady emotional support or help in obtaining and monitoring health care. Fifty-eight percent of the elderly respondents were illiterate, another barrier in obtaining health services.
It was not uncommon for China’s rural elderly to suffer chronic conditions, according to the study, including hypertension (18 percent), asthma (6 percent), and diabetes (3 percent). And those figures represent diagnosed conditions—the worrying possibility exists that many elderly suffer in the absence of any diagnosis. Fully a quarter of elderly were diagnosed with hypertension, and a third of those diagnosed with diabetes received no treatment.
Isolation and depression are also significant risks for rural elderly. China’s overall suicide rate has dropped sharply over the past two decades, especially among rural women under age 35. But among China’s elderly, it remains distressingly high. According to a recent study by researchers at the University of Hong Kong, cited by the Economist, the suicide rate for men in the Chinese countryside aged 70 to 74 is 41.7 per 100,000 (more than four times higher than the national average of 9.8 per 100,000).
Source/read more: Bloomberg
Saturday, August 9, 2014
The U.S. Department of Labor’s Office of Disability Employment Policy invites state governments and other interested stakeholders to participate in an online dialogue through Monday, Aug. 18, on hiring, retaining and advancing workers with disabilities. “State Governments: What Can We Do? Join the Conversation for Change,” will help inform ODEP’s technical assistance to states.
“State governments can play a critical role when it comes to increasing the employment rate of people with disabilities,” said Kathy Martinez, assistant secretary of labor for disability employment policy. “We need to fully understand their needs and how we can assist them so they, in turn, can foster increased employment of people with disabilities in state government and in the private sector.”
The online dialogue, will be facilitated through ODEP’s ePolicyWorks initiative and moderated by ODEP’s employer policy team.
ODEP invites state government disability employment professionals, state human resource and diversity professionals, and all others with insight into disability employment issues to participate in the dialogue. Participants are encouraged to share new or innovative approaches to employing individuals with disabilities and to comment or vote on posts made by others.
Friday, August 8, 2014
President Obama traveled to Fort Belvoir, Virginia to sign a reform bill giving the Department of Veterans Affairs the necessary resources to improve access and quality of care for the men and women who have served our country in uniform. In remarks before the bill signing, President Obama addressed the misconduct that has taken place at some VA facilities across the country —
We’ve already taken the first steps to change the way the VA does business. We’ve held people accountable for misconduct. Some have already been relieved of their duties, and investigations are ongoing. We’ve reached out to more than 215,000 veterans so far to make sure that we’re getting them off wait lists and into clinics both inside and outside the VA system.
We’re moving ahead with urgent reforms, including stronger management and leadership and oversight. And we’re instituting a critical culture of accountability -- rebuilding our leadership team, starting at the top with Secretary McDonald. And one of his first acts is that he’s directed all VA health care facilities to hold town halls to hear directly from the veterans that they serve to make sure that we’re hearing honest assessments about what’s going on.
The VA reform bill -- officially the Veterans’ Access to Care through Choice, Accountability, and Transparency Act of 2014 -- passed Congress with overwhelming bipartisan support, and will expand survivor benefits and educational opportunities and improve care for victims of sexual assault and veterans struggling with traumatic brain injuries. But the main focus of the new law is to ensure that veterans have access to the care they’ve earned.
Thursday, August 7, 2014
It was just about a year ago that Rebecca Morgan and I joined Kim Dayton on the Elder Law Prof Blog. Thank you, Kim, for this invitation! I'm not sure how many postings each of us has written over the last year -- but I suspect we've each averaged close to five items per week.
I know I've learned a lot from this "joint and several" effort, both in reading my colleagues' thoughtful items and in thinking more deeply as I try to craft my own. I know the Blog has opened new and interesting doors for me, including conversations with law faculty across the country -- and, indeed the world -- as well as many late night consulations with hard-working attorneys who are on the frontlines of topics we write about in the Blog. Our pieces sometimes have "second" lives, as when the editor for the Illinois Bar Association's Trust & Estate section asked for an expanded discussion of liability for family members under nursing home contracts, based on a blog post. Older adults sometimes email me to correct, question or clarify some point I've tried to make. Readers call or write to suggest new directions, new cases, and new articles for us to pursue. Thank you all!
Keep your cards and letters coming, folks. Let us know what we should be covering, Tell us what you like (or don't) about what we have included on the Elder Law Prof Blog to date. Happy Anniversary to our readers!
Wednesday, August 6, 2014
The White House has announced the 2015 White House Conference on Aging. According to the announcement, Nora Super will be the Executive Director of the WHCOA.and "[t]he 2015 White House Conference on Aging is an opportunity to look ahead to the issues that will help shape the landscape for older Americans for the next decade." The website for the conference, WhiteHouseConferenceOnAging.gov, is expected to be accessible by the end of the summer.
With the upcoming conference in mind, The Gerontologist issued a call for papers (abstracts due May 15 and papers due August 15) which "contribute novel conceptual manuscripts that outline a vision of older adults’ economic and retirement security, health, caregiving, and social well-being for the decade ahead… [as well as] pragmatic papers that explore ways to ensure the modification and/or continuation of … programs for present and future generations..."
In recent Formal Ethics Opinion 2014-F-158, the Board of Professional Responsibility for the Supreme Court of Tennessee addressed the following interesting question:
"Can a lawyer who represented a testator refuse to honor a court order or subpoena to disclose, prior to the client's death, a Will or other testamenatry document executed when the testator was competent on the basis that the document is protected against disclosure by the attorney-client privilege or confidentiality."
The Board's opinion indicates that not only "may" the lawyer refuse to disclose the will, but where circumstances indicate the client is no longer able to give informed consent because of intervening dementia, the lawyer may have a duty to raise all "nonfrivolous grounds" to protect the will from disclosure, including privileges under Tennessee statutes, citing Rule of Professional Conduct 1.6(c)(2).
In opening its analysis, the Board noted that it has become "increasingly common for courts to appoint attorneys in a representative capacity to represent individuals suffering from dementia and/or Alzheimer's who are the subject of a dispute or litigation regarding management of the individual's funds and/or person." During the course of the dispute, parties may attempt to seek review of the will prior to the death of the testator, citing reasons such as the need to "engage in estate planning."
The Board acknowledged the potential for facts that would permit the lawyer to disclose the contents of the disabled client's will, such as when a "lawyer believes the disclosure of the contents ... would be in furtherance of client's interest."
In commentary on the Tennessee Board Ethics Opinion, the ABA/BNA Manual on Professsional Conduct, in Vol. 30, No. 15, observed that "a 2010 law review article cites demographic patterns that have increased the likelihood of such scenarios," pointing to "A Common Thread to Weave a Patchwork: Advocating for Testatmentary Exception Rules," 3 Phoenix L. Rev. 729, 734-35 (2010) by then law student Andrew B. Mazoff, now an attorney in Phoenix.
Thanks to my colleague and ethics guru, Laurel Terry, for sharing this ethics opinion.
Tuesday, August 5, 2014
The Law and Ethics of Dementia, co-edited by Israel Doron, Charles Foster and Jonathan Herring, recently released in hardback by Hart Publishing and available for e-readers in September, is definitely on my "must read" list. Followers of this Blog will certainly recognize Issi Doron, from the University of Haifa, who has long exercised an international, comparative perspective on issues in ageing. Professor Foster is a practicing barrister and a fellow at Green Templeton College, University of Oxford, which is also the working home of prolific writer and Law Professor Herring.
The book is organized into five parts, Medical Fundamentals, Ethical Perspectives, Legal Perspectives, Social Aspects, and Patient and Carer Perspectives. As part of the first section, physicians and researchers Amos Korczyn and Veronika Vakhapova co-author "Can Dementia be Prevented?" a question we all hope will be answered in the affirmative. Not surprisingly, given the title of the book, the section on ethical perspectives promises to be especially fascinating, offering multiple views on ethical components of decision making and care. To suggest the scope, Andrew McGee's chapter is on "Best Interest Determinations and Substituted Judgement," while Leah Rand and Mark Sheehan tackle the challenge of "Resource Allocation Issues in Dementia."
In the Social Aspects section, I notice that Syracuse Law Professor Nina Kohn has a chapter on "Voting and Political Participation," while Chinese (and University of Pennsylvania) health care scholar Ruijia Chen and colleagues address "Physical, Financial and Other Abuse."
With more than forty individual chapters and dozens of international writers, this book promises to be a key guide for the future.
Governing did a story about where in the country by state the various generations live. The story, A State-by-State Look at Where Each Generation Lives, ran July 31, 2014. According to the story
You'll find the greatest concentration of baby boomers in three northeastern states: Maine, New Hampshire and Vermont. Boomers make up just under 30 percent of the population in these states, which are also the nation's oldest in terms of overall population... For the most part, slightly fewer baby boomers tend to reside in southern states. This could soon change, though, if historical migration patterns hold true and boomers opt to move south as they retire.
There are interactive maps for the Silents, Boomers, Xers and Millenials. The silents, totaling less than 11% of the population, and thus the smallest cohort, live mostly in Florida, but also live in West Virginia, Maine, Montana, Arizona and Arkansas.
Arin Fife, from the family law firm of Boyle and Feinberg in Chicago, offers "Don't Let Divorce Derail Your Retirement Plans: Understanding Your Options Before, During and After Your Marriage" in the Summer issue of the ABA's magazine Family Advocate. She reviews retirement basics, including differences between defined benefit and defined contribution plans, how accounts are valued, how accounts may be divided and addresses what do do with contributions during the divorce proceedings. She reminds that a low-income spouse may be advised to delay a divorce if approaching the ten-year anniversary of the marriage date, thereby maximizing Social Security options based on the stronger earner's SSA record. She warns that some "states consider this an offset against accumulation during marriage. Ask your lawyer for clarification in your state."
Lots of good tips here, including the reminder that if retirement accounts will be divided using a "Qualified Domestic Relations Order" or QDRO, it is important to give the plan administrator an opportunity to review and "pre-approve" the plan, thereby avoiding arguments or surprises after the property division or divorce is complete.
Monday, August 4, 2014
There is a fair amount of debate about whether and when long-term insurance is the best way to plan for the possibility of disability requiring future care. But, here is a first, at least in my experience: a claim by a major long-term care insurer that a policyholder engaged in fraud in seeking benefits tied to proof of his alleged need for assistance with activities of daily living. Undercover camera work was involved.
According to the federal magistrate called upon to rule on the defendant/insured's motion to dismiss, here are the key facts alleged (minus the citations to the record):
"At some point not specified in the Complaint, Transamerica began investigating whether [Defendant] was able to perform his Activities of Daily Living without assistance. To this end, Transamerica retained an investigator to conduct video surveillance of Jurin between January 5, 2012, and February 5, 2012. Transamerica alleges that this 'investigator recorded [the defendnt] in engaging in activities inconsistent with his asserted limitations.' An investigator conducted additional surveillance in 2013 from September 27 through 29, on October 5, and from October 7 through 12. Transamerica alleges that on these dates the investigator recorded [the defendent] performing various activities including walking uphill, walking while holding bags, entering and exiting a car without assistance, shopping, and doing yard work.
On October 9, 2013, Dr. Mohinder Nijjar, a board-certified orthopedic surgeon performed an Independent Medical Exam (“IME”) of [the defendent] and, based on [the defendent's] self-reporting and self-limiting behavior, opined that [he] was unable to perform Activities of Daily Living without assistance. Transamerica provided Dr. Nijjar with the investigator's video surveillance recordings and asked him whether the recordings altered the conclusions of his IME report. In December 2013, Dr. Nijjar issued a supplemental report in which he stated that, based on his observations in the videos, [the defendent] could engage in Activities of Daily Living without assistance, including washing, dressing, and feeding himself and walking. Dr. Nijjar further opined that Jurin was able to perform instrumental activities of daily living such as preparing meals, housekeeping, and laundry."
Sunday, August 3, 2014
I was reading an article about Merrill Lynch hiring a financial gerontologist, Five Questions for Financial Gerontologist Cyndi Hutchins. Ms. Hutchins "works with other Merrill Lynch financial advisers to manage their clients' transitions into retirement. She specializes in settling the fears many aging people have about life without a steady paycheck." In the interview, Ms. Hutchins explains why she got a degree in gerontology and explains what concerns clients vis a vis retirement: paying for out of pocket health care costs, including long term care, as well as those for family members. Comparing the Boomers and Millenials, Hutchins references the proverbial 3-legged stool and says for boomers-it's 2 legs--with no pension leg, but for Millenials, it's just one leg (savings). Her biggest challenge--client fears. "Helping them keep a healthy outlook and keeping it real is probably the biggest challenge. You don't want to come out there sounding like a Debbie Downer, but you want your clients to understand the issues that they're facing and face those issues head on and feel like they have clarity. There's so many things to consider."
I was intrigued by this concept of financial gerontology so I did a google search and found out Ms. Hutchins is not the only one out there. The American Institute for Financial Gerontology offers not only CEs but also a registered financial gerontologist program ("RFG®"). The faculty include several individuals well-known to elder law attorneys. Dr. Sandra Timmermann wrote an article that was published in 2005 in the Journal of Financial Services Professionals, Looking into the Crystal Ball and Seeing Gray: Predictions For Financial Services. At the time of authoring the article, Dr. Timmermann "was the founder and Executive Director of the MetLife Mature Market Institute" (dissolved 06/2013) and is currently a consultant for businesses on aging.
Friday, August 1, 2014
I have great respect for individuals who publicly disclose their diagnosis of Alzheimer's Disease or other serious, progressive conditions. The Denver Bronco's owner Pat Bowlen, frequently described as one of the "most iconic owners in NFL history," recently disclosed that his decision to step down completely at age 70 was connected to his struggles with Alzheimer's. According to the Denver Post, "Bowlen had first revealed to [the newspaper] in May 2009 that he was experiencing short-term memory loss."
News reports on Bowlen also demonstrate the importance of succession planning tools such as "trusts" to manage assets, particularly when there is a goal or plan for continued family involvement.
Thursday, July 31, 2014
At the 2014 International Elder Law and Policy Conference hosted by John Marshall Law School in Chicago on July 10 and 11, many weeks of hard work culminated in adoption of a "Chicago Declaration on the Rights of Older Person." The 11th draft -- of what is to be a working document for the future -- will be presented at the Fifth Working Session of the United Nations Open-Ended Working Group on Ageing to be held in New York City this week.
In addition, the Chicago Declaration was submitted by United States Representative Janice Schakowsky (Illinois) to the Congressional Record on July 25.
Congratulations to all who worked on this, with the leadership of many, including Associate Dean Ralph Rubner and Amy Taylor, Head Research Coordinator at John Marshall Law School. More work for everyone is ahead on this exciting task of seeking wider recognition of the human rights of older persons.
Speakers at the "Side Event" for the Chicago Declaration, to be held on August 1 at the U.N., include William Pope, Commissioner of the American Bar Association Commission on Law and Aging, and Ebbe Johansen, Vice President, AGE Platform Europe from Brussels.
As readers of this Blog may recall, back in April 2008 NBC's Dateline program aired a segment called "Tricks of the Trade" that incorporated use of hidden cameras to record portions of seminars that allegedly showed insurance salesmen trained to market certain types of deferred payment annuities. The NBC program alleged that the sales techniques specifically and improperly targeted or misled older consumers.
Tyrone M. Clark and his company, Brokers' Choice of America (BCA), brought suit against NBC and certain employees in federal court in Colorado, claiming the Dateline program violated state law, including allegations of defamation. Clark and BCA also alleged constitutional violations. The federal district court dismissed the complaint in 2011.
On July 9, 2014 the Tenth Circuit affirmed the dismissal of the alleged 4th Amendment violations, but remanded for further proceedings on the allegations of defamation. At the heart of Clark's claim was the argument that a full, unedited viewing of his seminar for insurance salesmen would reveal that students were properly counseled that such "annuities were not for everyone" and that salespeople must give "full disclosure of various advantages and disadvantages of the annuity products." In other words, Clark claimed Dateline's excerpts were misleading, and therefore defamatory.
The Tenth Circuit's ruling on defamation stressed that it was reviewing the district court's ruling on NBC's motion to dismiss and thus must view the facts alleged in the complaint "as true and in the light most favorable to the nonmoving party," i.e., Clark and BCA. The 10th Circuit concluded, "Whether these allegations will survive summary judgment remains to be seen. The factual basis of the complaint ... is sufficient to state a plausible claim."
Further, the Tenth Circuit upheld the request by Clark and BCA to discovery of the full, unedited tapes surreptitiously recorded by NBC, production that NBC has resisted:
"BCA would be greatly prejudiced in its ability to prove the defamation claim without access to the unedited film. Dateline's First Amendment interests do not involve the disclosure of confidential information or confidential sources. The fact-finder is entitled to the best evidence available, particularly in a case like this, which asks whether the media's zeal to report and perhaps sensationalize should be tempered by its responsibility not to defame. For all of those reasons, BCA's factual allegations are sufficient to warrant discovery of the unedited film. The Colorado statue [on newsperson's privilege] is a shield, not a sword."
For additional details, see the 10th Circuit's ruling on Broker's Choice of America, Inc. v. NBC Universal, Inc. and commentary from the Colorado Bar Association's Legal Connection news.
Wednesday, July 30, 2014
John Washlick, a shareholder with Buchanan Ingersoll & Rooney in Philadelphia and Princeton, provides a concise and useful overview of laws that form the basis for claims of "fraud" or "abuse" associated with Medicare and Medicaid in the most recent issue of Pennsylvania Bar Quarterly (April 2014, available also on Westlaw). The abstract to his article, "Health Care Fraud and Abuse," provides:
"Medicare and Medicaid combined comprise the largest payer of health care services in the world, and account for over 20 percent of all U.S. government spending. As a result, efforts to combat fraud and abuse in these programs have become a congressional and administrative priority. This article will address four significant federal fraud and abuse laws: (i) Anti-Kickback Statute, (ii) "Stark" Anti-Referral Law, (iii) Civil Monetary Provisions, and (iv) False Claims Act (Civil and Criminal). The Patient Protection and Affordable Care Act, more commonly referred to as the "Affordable Care Act" significantly strengthened each of these laws, including increased funding to step up enforcement actions. There are other federal and state statutes that are aimed at curbing fraud and abuse and they should not be ignored when reviewing a financial arrangement between or among potential referral sources."
A useful guide, especially when reading about multi-million dollar settlements in whistleblower cases growing out of nursing home care, home care, hospice care, and pharmaceutical sales, such as the Omnicare settlement reported on the Elder Law Prof Blog today.